FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Don T. Hall,
N. Siegel of Glenn N. Siegel, P.A., Port Charlotte, for
K. Oakes of David K. Oakes, P.A., Punta Gorda, for Appellee
appearance for remaining Appellee.
Kowalski appeals an order confirming a special master's
report in the probate proceedings of her deceased
husband's estate. We affirm the order confirming the
special master's findings and conclusions, but we write
to discuss Kowalski's claim that certain money was not
subject to probate because it was held by her and the
decedent as tenants by the entireties.
and the decedent were still married but had been separated
for approximately sixteen years at the time of the
decedent's death in 2015. In a will executed prior to his
death, the decedent left the majority of his estate to his
long-term, live-in girlfriend. Kowalski sought an elective
share of the estate. A special master was appointed to
determine critical issues, and the special master found,
among other things, that Kowalski was in possession of money
that belonged to the decedent's estate. Specifically, the
special master found that the Kowalskis had received $3, 445,
066 from the sale of their business real estate in 2006 and
that one half of that amount ($1, 722, 533) belonged to the
decedent. He had received $1, 008, 547 during his life, and
the remaining amount of $713, 986 was now due to his estate.
The special master ordered Kowalski to tender the money to
the estate. The trial court confirmed the special
appeal, Kowalski argues that the trial court erred in
approving the special master's report because the money
was held by her and the decedent as tenants by the entireties
and was therefore not subject to probate upon the
decedent's death. She contends that a presumption of
tenancy by the entireties arose regarding the remaining
proceeds from the sale of the couple's business real
estate and that there was no evidence rebutting that
unique aspect of a tenancy by the entirety is that each
spouse is 'seized of the whole or the entirety, and not
of a share, moiety, or divisible part.'" Sitomer
v. Orlan, 660 So.2d 1111, 1113 (Fla. 4th DCA 1995)
(quoting Bailey v. Smith, 103 So. 833, 834 (Fla.
1925), receded from on other grounds by Beal Bank, SSB v.
Almand & Associates, 780 So.2d 45, 59 (Fla. 2001)).
In other words, "property held by husband and wife as
tenants by the entireties belongs to neither spouse
individually, but each spouse is seized of the whole."
Beal Bank, SSB, 780 So.2d at 53. "The important
attribute separating a joint tenancy from a tenancy by the
entirety is that in a tenancy by the entirety neither spouse
may sever or forfeit any part of the estate without the
assent of the other, so as to defeat the right of the
survivor." Sitomer, 660 So.2d at 1113 (citing
married couple holds money in a jointly-titled bank account,
a rebuttable presumption arises in favor of a tenancy by the
entireties, unless the terms of the account expressly
disclaim the tenancy by the entireties form of ownership.
See Beal Bank, SSB, 780 So.2d at 57. Here, Kowalski
did not offer testimony that the money from the sale was held
in an account that was titled in both of their names; in
fact, she appears to have conceded that the money was held in
accounts titled solely in her name. Thus, she has not
demonstrated that the presumption applies. But we must still
consider whether Kowalski proved that the funds were held by
her and the decedent as tenants by the entireties. See
id. at 61 (recognizing that when no presumption arises,
a party may still prove a tenancy by the entireties).
was no dispute that the business property that was sold
constituted marital property. Generally, "[t]he proceeds
from the sale . . . of tenancy by the entireties property are
also held as a tenancy by the entireties and are owned in
total by both the husband and the wife." Passalino
v. Protective Grp. Sec., Inc., 886 So.2d 295, 297 (Fla.
4th DCA 2004) (citing cases). However, the character of the
proceeds may change if the parties intended to change the
character. Id. The question is whether Kowalski and
the decedent intended to hold the funds as tenants by the
entirety. "Whether the parties created a tenancy by the
entireties in a bank account-whether they were each taking
the whole of the account-is a question of fact."
Sitomer, 660 So.2d at 1115. A tenancy by the
entireties can be terminated by the agreement of the owners,
and "[t]he agreement need not be explicit" but
"can be inferred from the conduct of the parties."
Passalino, 886 So.2d at 297.
hearing, Kowalski testified that she "hung on [to] those
moneys" and that in her mind, she did not "divide
that amount, one-half for [the decedent], one-half for"
herself. She also testified that the decedent "did not
expect everything to be cut down the middle." She
testified that the decedent did not have control over the
money; he would come to her when he needed money. At the time
of his death, the decedent had received a little over $1,
000, 000. Kowalski also testified that if the decedent had
lived and had continued to ask for money, she would have
wanted answers and money from him, so it came out equal. I
would have wanted all of it be figured out as a lump sum.
Take the proceeds of the sale of the land and the proceeds of
the sale of the inventory and ...